December 17, 2009 - In the first decision of its kind, the Colorado Supreme Court on Monday, December 14th extinguished hopes that theater actors would be exempted from a statewide smoking ban after all but one justice voted to uphold lower-court decisions barring cigarette use in performances.

The move ends a three-year state fight in which a coalition of state and national theater groups argued in multiple courts that the ban infringed on free-speech rights and interfered with their abilities to accurately produce plays.Six justices found that regardless of whether onstage smoking is a form of expression, the ban on smoking in public places is constitutional because it aims to promote public health rather than stifle free speech.

No other state supreme court has decided a case involving a free-speech opposition to a state smoking ban, according to attorney A. Bruce Jones, who said his theater-company clients have not ruled out seeking a U.S. Supreme Court decision on the topic.

Denver's Curious Theatre Company is one of the handful of local theaters now considering their next move, said artistic director Chip Walton. "Obviously, we're very disappointed and don't agree with the decision," Walton said. "It doesn't appear that the court recognizes the negative impact this smoking ban has on live theater."

Because the decision by Colorado's top court could impact similar cases elsewhere in the country, the fight has drawn both national attention and support from theatrical and civil-rights groups such as the Thomas Jefferson Center for the Protection of Free Expression, the Dramatists Guild of America and the American Civil Liberties Union.

The courts heard testimony suggesting Colorado's 2006 anti-smoking rules are more stringent than in other states, many of which either exempt artistic performances or allow onstage smoking of non-tobacco cigarettes. (On Saturday, July 1, 2006 Colorado became the 13th state in the nation to ban smoking in bars, restaurants and most workplaces. Some cities, such as Pueblo, Boulder and Fort Collins, already had local bans in place. Colorado Smoking Ban Now In Effect, DenverChannel.com, 7/2/2006)

The defense, led by state Attorney General John Suthers, argued that actors can and do use fake cigarettes as an adequate alternative. Suthers, for example, attended a Rat Pack homage recently and found the bad-boy musicians all puffed mechanical stand-ins. "You can accomplish the expressive content by using (a) fake cigarette," Suthers said. "A lot of people are."

But in a dissenting opinion, Justice Gregory Hobbs called alternative devices "untenable and even laughable" and stated that onstage smoking is critical to setting mood and developing characters. "The characters and plots would lack depth and expressive force without the hovering smoke on stage, the poignant exhale of a puff of smoke and even the ability or inability to smoke," he wrote.

Even so, lawmakers intended the band to extend to artistic performances, said former state Rep. Mark Larson, who carried a similar bill in 2005 and supported it in 2006, the year it passed. A theater exemption was briefly amended into the bill but taken out of later versions, Larson said. "Acting is acting," Larson said. "Why not having a fake cigarette? What . . . difference does it make? Come on."

From left to right: Uta Hagen, cigarette in hand, Arthur Hill, Beverlee McKinsey and Richard Easton in the London production of Edward Albee's "Who's Afraid of Virginia Woolf,' at the Piccadilly Theater in London in the early 1960s. This scene cannot take place as written in Lincoln, Neb.; Colorado; Scotland; or, starting April 2, in Wales. Smoking bans are so strict in these places that actors cannot legally light even herbal cigarettes onstage. (NYTNS | NYT)